When the National Labor Relations Board issued its decision in the Electromation case in late 1992, healthcare labor experts sent up a flare, warning hospitals that frequent use of management-employee committees to address workplace issues put them at risk of violating federal labor law.
The experts were right, at least as far as one hospital was concerned. And the case now is pending before a federal appellate court, which may set precedential labor law for hospitals.
Less than a year after the Electromation decision, the NLRB said 400-bed Peninsula General Hospital Medical Center in Salisbury, Md., engaged in an unfair labor practice by financing and participating in an employee committee that represented nursing concerns to management.
The decision "echoes the message sent in Electromation," said G. Roger King, a labor attorney with Jones, Day, Reavis & Pogue in Columbus, Ohio. "Employers must proceed with caution in regard to the formation or enhancement of employee participation plans."
In Electromation, the NLRB reviewed a provision of the National Labor Relations Act that protects legitimate labor organizations from undo influence by employers. Under the law, a group of employees can be considered a labor organization if it deals with such workplace issues as grievances, wages, work hours and working conditions. If a group of employees is a labor organization, an employer can't "dominate or interfere" with it.
In that case, involving an electronics manufacturer in Indiana, the NLRB said internal employee "action committees" weren't communications devices to solicit employee input, like the company said, but were formed to address employees' concerns with working conditions (Jan. 18, 1993, p. 35).
The company has appealed the case to the 7th U.S. Circuit Court of Appeals in Chicago. The court heard oral arguments last fall, and a decision is pending.
When the NLRB decided Electromation,it was considering an appeal by Peninsula General of a January 1992 ruling by a federal administrative law judge assigned to the NLRB.
The case involved a nursing committee, called the Nursing Service Organization, formed in 1968 by the hospital's 500 nurses. The original mission of the NSO primarily was to serve the social concerns of its members, such as sending flowers to retiring nurses.
Under the direction of the hospital's vice president for nursing, who belonged to the NSO and served on the NSO's executive committee, the NSO in early 1990 also began serving as a forum for nurses to express to hospital management their concerns over working conditions, NLRB records said. The hospital also began kicking in $500 annually to cover the NSO's costs.
Simultaneous to the expanded mission, the Maryland Nurses Association began an organizing effort to unionize the hospital's nurses. The nurses voted down the union in April 1990.
But, the MNA filed an unfair labor practice charge against the hospital in January 1991. The union said the NSO was a labor organization as defined by federal law, and the hospital interfered with its operations.
In a Jan. 14, 1992, decision, Judge Peter Donnelly agreed, finding that the NSO began addressing such issues as wages, benefits, worker dissatisfaction and career progression for nurses. And, the hospital wrongly dominated the NSO by having its nursing vice president on the executive committee and having the NSO's co-chairpersons report to the hospital's board of trustees, he said.
Judge Donnelly ordered the hospital to dissolve the NSO.
On appeal, the NLRB, citing its decision in Electromation, affirmed Judge Donnelly's decision on Sept. 30, 1993.
The hospital has appealed to the 4th U.S. Circuit Court of Appeals in Richmond, Va. Arguments haven't been set.
The NSO is not a labor organization, said Jeff Corrigan, the hospital's vice president of human resources. The primary function of the NSO is to discuss nurse practice issues and ways to improve care, not working conditions or terms of employment, he said.
"We're continuing to operate the NSO in the belief that we will prevail," Mr. Corrigan said.